United States District Court, E.D. Michigan, Southern Division
G. EDMUNDS DISTRICT JUDGE
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION ON
CROSS-MOTIONS FOR SUMMARY JUDGMENT (R. 43, 46)
Patricia T. Morris United States Magistrate Judge
reasons set forth below, IT IS RECOMMENDED
that Defendants'Motion for Partial Summary Judgment, (R.
43), be GRANTED IN PART, and that Plaintiff
Lamont Heard's Motion for Summary Judgment, (R. 46), be
Court adopts this Report and Recommendation in full, it will:
• Dismiss defendants Adam Douglas and Jeffery
Oosterhof because Plaintiff failed to properly
exhaust any claims against them.
• Dismiss Plaintiff's claims against defendants
Cedric Griffey and Scott Schooley based on his housing unit
transfer (January 2017 grievance). Plaintiff's claims
against Griffey and Schooley based on his prison transfer
(July 2017 grievance) would remain.
• Make no changes as to defendants Yarnice Shannon or
November 19, 2018, Defendants filed a motion for partial
summary judgment based on the affirmative defense that
Plaintiff had failed to properly exhaust his administrative
remedies, (R. 43); Plaintiff responded, (R. 47), and
Defendants replied (R. 53). On December 11, 2018, Plaintiff
filed his own motion for summary judgment, (R. 46);
Defendants responded, and Plaintiff replied, (R. 55). The
cross-motions are before me by order of reference, (R. 9),
and are ready for resolution.
Factual & Procedural History
case centers on Plaintiff's January 2017 transfer from
one housing unit to another within Thumb Correctional
Facility (TCF), and his June 2017 transfer from TCF to G.
Robert Correctional Facility (JCF). (Doc. 15 at PageID.196-197).
Plaintiff claims the defendants, including Griffey, violated
his First Amendment rights by orchestrating one or both of
his transfers in retaliation for his legal activities.
(Id. at PageID.203-04). When Plaintiff began
collaborating with other inmates on a civil case against
Michigan state officials, he says, defendant Oosterhof told
other defendants that Plaintiff was actually recruiting for
gangs and Oosterhof wanted him gone. (Id. at
PageID.198). Defendants Douglas, Griffey, and Schooley
discussed the matter at a security meeting and decided to
transfer Plaintiff to a different housing unit, separating
him from his co-plaintiffs in his civil case. (Id.)
In January 2017, Plaintiff attempted to file a grievance
against Oosterhof about that transfer, but he never received
a response. (Id.; R. 47 at PageID.611-612). He also
met with defendant Douglas, who told him that he needed to
cease his “legal activities and group meetings, ”
or he would be transferred to another prison. (Id.)
March 2017, “[P]laintiff was reconsidered for transfer
and placed on the transfer list.” (Id. at
PageID.199). As Plaintiff sees it, the only explanation for
this change in his transfer status was his legal activities;
Plaintiff worked as a tutor, and he had no misconduct
21, 2017, Defendant Shannon became upset that Plaintiff had
waited until the end of Shannon's shift to send legal
mail and told Plaintiff that he was going to talk to Strange
about having him transferred. (Id.). The next day,
Shannon prepared a Security Classification Screen-Review for
the purpose of requesting Plaintiff's transfer.
June 23, 2017, Strange told Plaintiff that three of the other
Defendants “were tired of [P]laintiff assisting others
with grievances, and lawsuits[, and] that it was time to
transfer [P]laintiff.” (Id. at PageID.200).
Strange said it was her decision whether to transfer
Plaintiff, and she sought a promise that he would cease his
legal activities. (Id.) He refused; Strange
immediately instructed Shannon to take steps to transfer
point in the conversation, Plaintiff explained that they
could not retaliate against him for pursuing litigation, and
that he would lose his job (which he needed to support his
legal activities), his family would struggle to visit him at
a new location, communications with his co-plaintiffs would
be strained, and he would lose access to certain prison
programming. (Id. at PageID.201). Unmoved, Strange
replied, “[W]ho is going to stop me. You wait and see,
” and threatened to influence defendants Griffey and
Schooley to support the transfer. (Id.)
days later, Plaintiff was transferred to JCF, a more
dangerous and restrictive prison. (Id. at
PageID.202). According to Plaintiff, the consequences were
severe: his new roommate, a psychiatric patient, threatened
to kill him; he lost library access for a month; and all the
consequences he had foretold (e.g., losing his job)
came to pass. (Id. at PageID.202-203). Plaintiff
filed a grievance about his transfer in July 2017, which he
appealed through Step Three. (R. 43 at PageID.481-485). His
grievance was denied at Step Three in October 2017,
(id. at PageID.481), and he filed suit in December
2017. (R. 1).
Summary Judgment Standard
will grant a party's motion for summary judgment when the
movant shows that “no genuine dispute as to any
material fact” exists. Fed.R.Civ.P. 56(a). In reviewing
the motion, the court must view all facts and inferences in
the light most favorable to the non-moving party.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986). The moving party bears “the
initial burden of showing the absence of a genuine issue of
material fact as to an essential element of the
non-movant's case.” Street v. J.C. Bradford
& Co., 886 F.2d 1472, 1479 (6th Cir. 1989) (quoting
Celotex Corp. v. Cartrett, 477 U.S. 317, 323 (1986))
(internal quotation marks omitted). In making its
determination, a court may consider the plausibility of the
movant's evidence. Matsushita, 475 U.S. at
587-88. Summary judgment is also proper when the moving party
shows that the non-moving party cannot meet its burden of
proof. Celotex, 477 U.S. at 325.
non-moving party cannot merely rest on the pleadings in
response to a motion for summary judgment. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Instead,
the non-moving party has an obligation to present
“significant probative evidence” to show that
“there is [more than] some metaphysical doubt as to the
material facts.” Moore v. Philip Morris Cos.,
8 F.3d 335, 339-40 (6th Cir. 1993). The non-movant cannot
withhold evidence until trial or rely on speculative
possibilities that material issues of fact will appear later.
10B Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 2739 (3d ed. 1998). “[T]o
withstand a properly supported motion for summary judgment,
the non-moving party must identify specific facts and
affirmative evidence that contradict those offered by the
moving party.” Cosmas v. Am. Express Centurion
Bank, 757 F.Supp.2d 489, 492 (D. N.J. 2010). In doing
so, the non-moving party cannot simply assert that the other
side's evidence lacks credibility. Id. at 493.
And while a pro se party's arguments are entitled to
liberal construction, “this liberal standard does not .
. . ‘relieve [the party] of his duty to meet the
requirements necessary to defeat a motion for summary
judgment.'” Veloz v. New York, 339
F.Supp.2d 505, 513 (S.D.N.Y. 2004) (quoting Jorgensen v.
Epic/Sony Records, 351 F.3d 46, 50 (2d Cir. 2003)).
“[A] pro se party's ‘bald assertion,'
completely unsupported by evidence, is not sufficient to
overcome a motion for summary judgment.” Lee v.
Coughlin, 902 F.Supp. 424, 429 (S.D. N.Y. 1995) (quoting
Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991)).
the non-moving party fails to adequately respond to a summary
judgment motion, a district court is not required to search
the record to determine whether genuine issues of material
fact exist. Street, 886 F.2d at 1479-80. The court
will rely on the “facts presented and designated by the
moving party.” Guarino v. Brookfield Twp.
Trs., 980 F.2d 399, 404 (6th Cir. 1992). After examining
the evidence designated by the parties, the court then
determines “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is
so onesided that one party must prevail as a matter of
law.” Booker v. Brown & Williamson Tobacco
Co., 879 F.2d 1304, 1310 (6th Cir. 1989) (quoting
Anderson, 477 U.S. at 251-52). Summary judgment will
not be granted “if the evidence is such that a
reasonable jury could return a verdict for the non-moving
party.” Anderson, 477 U.S. at 248.
passed the Prison Litigation Reform Act of 1995 (PLRA) in
response to a “sharp rise in prisoner litigation in the
federal courts.” Woodford v. Ngo, 548 U.S. 81,
83 (2006). By passing the PLRA, Congress attempted
to ensure that “the flood of nonmeritorious [prisoner
civil rights] claims [did] not submerge and effectively
preclude consideration of the allegations with merit.”
Jones v. Bock, 549 U.S. 199, 203 (2007). Congress
equipped the PLRA with several mechanisms designed to reduce
the quantity and increase the quality of the claims that came
to federal court. Id. A “centerpiece” of
the PLRA was the “invigorated” exhaustion
requirement, Woodford, 548 U.S. at 84: “No
action shall be brought with respect to prison conditions
under [§ 1983] . . . by a prisoner confined in any jail,
prison, or other correctional facility until such
administrative remedies as are available are exhausted,
” 42 U.S.C. § 1997e(a) (2000). Courts consider the
PLRA's suits “brought with respect to prison
conditions” to include “all inmate suits about
prison life, whether they involve general circumstances or
particular episodes, and whether they allege excessive force
or some other wrong.” Porter, 534 U.S. at 532.
Woodford Court held that a prisoner has exhausted
his or her administrative remedies when (1) no remedies
currently remain available, and (2) the remedies that had
been available to the prisoner were “properly”
exhausted. 548 U.S. at 93. Prior to Woodford, there
were conflicting interpretations of the PLRA's exhaustion
requirement. Some circuits interpreted the exhaustion
requirement to mean that plaintiffs must have no more
administrative remedies available before bringing their cases
to federal court. Id. Others interpreted it to mean
that plaintiffs must have “properly” exhausted
their available remedies by following the agency's
procedural requirements such as “deadlines and other
critical procedural rules.” Id.
finding that exhaustion of remedies required
“proper” exhaustion, the Court was persuaded by
how “strikingly” similar the language in the PLRA
is to the doctrine of exhaustion in administrative law.
Id. at 102. It also considered the purposes behind
the exhaustion requirement, reasoning that an interpretation
that did not require proper exhaustion would render the PLRA
“toothless”-enabling a prisoner to bypass prison
remedies by simply disregarding or ignoring deadlines.
Id. at 95. “Proper exhaustion” means
that the plaintiff complied with the administrative
“agency's deadlines and other critical procedural
rules.” Id. at 90. Complaints and appeals must
be filed “in the place, and at the time, the
prison's administrative rules require.”
Id. at 87 (quoting Pozo v. McCaughtry, 286
F.3d 1022, 1025 (7th Cir. 2002)).
Jones, the Court instructed courts to look to the
prison's policy itself when determining “whether a
prisoner has properly exhausted administrative remedies-
specifically, the level of detail required in a grievance to
put the prison and individual officials on notice of the
claim.” 549 U.S. at 205; id. at 218
(“The level of detail necessary in a grievance to
comply with the grievance procedures will vary from system to
system and claim to claim, but it is the prison's
requirements, and not the PLRA, that define the
boundaries of proper exhaustion.” (emphasis added)).
Specifically, Jones determined whether a plaintiff
needed to identify the defendant by name during the initial
grievance process. Since the MDOC's policy at the time
did not require that level of specificity, the Court did not
find that the PLRA required it. Id. at 218. However,
the current MDOC policy requires this level of specificity.
MDOC Policy Directive (“PD”) 03.02.130 (eff. July
plaintiff does not need to show proper exhaustion as a part
of his or her complaint. Jones, 549 U.S. at 216.
Rather, failure to properly exhaust remedies is an
affirmative defense. Id.
MDOC provides prisoners with a grievance procedure for
bringing forward their concerns and complaints. See
MDOC PD 03.02.130 (eff. July 9, 2007). The MDOC's
grievance procedure consists of steps that a prisoner must
follow prior to filing a complaint in court, and each step is
accompanied by a time limit. First, the grievant must attempt
to resolve the issue with the person involved “within
two business days after becoming aware of a grievable issue,
unless prevented by circumstances beyond his/her
control.” MDOC PD 03.02.130(P).
initial attempt to resolve the issue with the person involved
is impossible or unsuccessful, the inmate must then submit a
Step I grievance form within five days. MDOC PD 03.02.130(V).
If the grievance is accepted, the prison staff is required to
respond in writing to a Step I grievance within fifteen days,
unless an extension is granted. MDOC PD 03.02.130(X). The
policy provides the following instructions regarding the
information that needs to be included in a grievance:
The issues should be stated briefly but concisely.
Information provided is to be limited to the facts
involving the issue being grieved (i.e., who, what, when,
where, why, how). Dates, times, places and names of all those